966 F.

2d 9
18 UCC Rep.Serv.2d 134

LUSON INTERNATIONAL DISTRIBUTORS, INC., Plaintiff,

Appellee,
v.
FABRICATING AND PRODUCTION MACHINERY, INC.,
Defendant, Appellant.
No. 91-2239.

United States Court of Appeals,

First Circuit.
Heard April 8, 1992.
Decided June 4, 1992.

Richard C. Van Nostrand with whom Mirick, O'Connell, DeMallie &

Lougee, Worcester, Mass., was on brief, for defendant, appellant.
Robert E. Sutton with whom Sutton & Kelly, Milwaukee, Wis., was on
brief, for plaintiff, appellee.
Before BREYER, Chief Circuit Judge, CYR, Circuit Judge, and STAHL ,
District Judge.
CYR, Circuit Judge.

Defendant Fabricating and Production Machinery, Inc. appeals a district court

judgment entered in favor of plaintiff Luson International Distributors, Inc. for
breach of their contract for the sale of goods. Appellant claims that the district
court improperly denied its motion for judgment notwithstanding the verdict, or
for new trial, and gave inadequate instructions to the jury. We affirm.

2* BACKGROUND
3

During the latter part of 1988, Luson shipped on consignment to appellant, for
ultimate sale to an end user, a large and complex machine known as a vertical
machining center which appellant in turn sold and delivered to Pro-Cut

Machine. Appellant paid Luson the first installment in accordance with Luson's
invoice. Installation of the equipment at Pro-Cut occurred in February of 1989.
Shortly thereafter operational problems developed with the machine leading to
a series of communications between appellant and Luson during the period
from March through July 1989. The problems persisted despite several attempts
by Luson to rectify them. Finally, by letter dated July 27, 1989, Pro-Cut
demanded the return of its deposit from appellant and stated its willingness to
return the machine to appellant. Appellant credited Pro-Cut's account, but the
machine was never returned to Luson. Luson brought its diversity action for
breach of contract in October 1989. As the parties stipulated that revocation of
the acceptance of the machine was warranted, the only matters in dispute were
whether the notice of revocation of acceptance was timely and proper.
II
DISCUSSION
4A. Judgment n.o.v.
5

Judgment n.o.v. is unwarranted unless the evidence " 'could lead a reasonable
person to only one conclusion,' " (1st Cir.1991) (quoting (1st Cir.1987));
"namely, that the moving party was entitled to judgment," see Fed.R.Civ.P.
50(b). The trial court may not assess the credibility of witnesses, resolve
conflicts in testimony or weigh the evidence, but must view all facts and
reasonable inferences therefrom " 'in the light most favorable to the party for
whom the jury held....' " (citing cases) (quoting (1st Cir.1985)). Thus viewed,
unless the evidence "point[s] so strongly and overwhelmingly in favor of the
movant that a reasonable jury could not have arrived at [the challenged
verdict]," the trial court must sustain it. (quoting The denial of a motion for
judgment n.o.v. is reviewed under "the same stringent decisional standards that
control the district court." (citing cases). Appellant bore the burden of proving
that its notice of revocation was adequate and timely. See (1982) (buyer must
prove when it revoked acceptance). As there was substantial evidence to
support the jury finding that appellant's notice of revocation to Luson was
inadequate, the district court correctly denied the motion for judgment n.o.v.
See (judgment n.o.v. improper if substantial evidence supports verdict).

A revocation of the acceptance of goods under Uniform Commercial Code Sec.

2-608(2) "is not effective until the buyer notifies the seller of it." Mass.Gen.L.
ch. 106, Sec. 2-608(2). " '[W]hether the notice requirement has been complied
with is a question which is particularly within the province of the [fact-finder].'
" (1985) (quoting (1983) (quoting (5th Cir.1976))). Under Massachusetts law,
the sufficiency of the notice of revocation must be determined "in light of all

the circumstances, including the testimony of the parties, the nature of the
goods sold, and the course of dealing between the parties after the sale and
prior to the rejection." (citation omitted). In order for the notice of revocation to
be found sufficient, "[t]he seller must be able to infer ... that an identified buyer
is asserting legal rights." (interpreting notice requirement under Sec. 2-607(3)
(a)) (emphasis added). "Although notice need not be in any particular form, it
must do more than inform the seller of the defects and of the buyer's
dissatisfaction; the notice must inform the seller that the buyer does not want
the goods and does not desire to retain them." In re G.S.F. Corp.,
(Bankr.D.Mass.1980) (interpreting Massachusetts law). The buyer bears the
burden of establishing the adequacy of its revocation. (considering adequacy of
notice of revocation of acceptance of goods).
7

Appellant attempts to establish the sufficiency of its notice of revocation, as a

matter of law, through reliance on two pieces of evidence. First, appellant
points to the testimony of James Williams, one of its own employees, to the
effect that he had several conversations with Roger Gold, Luson's national sales
manager, relating to appellant's alleged desire to return the machine. Williams
testified that he told Gold that--

8 Cois [President of Pro-Cut had] had it with the machine. He did not want to see
Mr.
another repairman. He wanted to get rid of the machine. Please give the man his
money back. We'll be more than happy to give your machine back. (emphasis
added).
9

Mr. Gold denied that he had any discussions with Mr. Williams about returning
the machine.

10

Second, appellant points to its letter to Luson dated July 19, 1989, which
recounts the problems experienced with the machine, and states:

11is our suggestion that in order to keep everyone happy, and I think the customer
It
has a very good case, in that the machine has been nothing but trouble, we return his
deposit and ship the machine back to you where it can be properly repaired and sold
to another customer once the necessary machine and control repairs are made.
(emphasis added).
12

On the other hand, the evidence revealed that appellant neither recovered the
machine from Pro-Cut nor arranged for its shipment to Luson. Instead, the
machine remained in Pro-Cut's possession at the time of trial, some two years
after the July 19, 1989 letter.

13

Even if the jury had chosen to credit this evidence at face value, but see the
Gold-Williams conversations and the July 19 letter, alone or in combination,
did not establish, as a matter of law, a sufficient notice of revocation of the
acceptance of the machine. Independently, each piece of evidence merely
evinces a suggestion--even a readiness--that appellant return the machine to
Luson; in combination, the evidence represents something substantially more
equivocal than a clear statement of appellant's determination not to retain the
goods, see or of its intention to "assert [its] legal rights" to revoke its
acceptance, see We conclude that a jury reasonably could find that the notice of
revocation was insufficient.

B. New Trial
14

A motion for a new jury trial enlists the sound discretion of the district court.
(citing "[A] trial judge cannot displace a jury's verdict merely because [s]he
disagrees with it or would have found otherwise in a bench trial," (1st
Cir.1988), or because "a contrary verdict may have been equally--or even more
easily--supportable" on the evidence, (1st Cir.1988). "Rather, it must appear
that the verdict is 'against the clear weight of the evidence.' " (quoting (1st
Cir.), cert. denied, (1982)). Otherwise put, it must appear that there has been a
"manifest miscarriage of justice." (citing cases).

15

In light of the evidence we have recounted, we cannot say that the verdict
represents a miscarriage of justice. Appellant bore the burden of establishing
that the notice of revocation was adequate and timely. The only evidence it
offered as to the adequacy of the notice of revocation indicated that it had
suggested the return of the machine. Even if appellant's evidence would have
supported a favorable verdict, a reasonable juror could find that the putative
notice of revocation was equivocal. Thus, the verdict was not "so clearly against
the weight of the evidence as to amount to a manifest miscarriage of justice."
"The mere fact that a contrary verdict may have been equally--or even more
easily--supportable furnishes no cognizable ground for granting a new trial. If
the weight of the evidence is not grotesquely lopsided, it is irrelevant that the
judge, were [s]he sitting jury-waived, would likely have found the other way."
The trial court did not abuse its discretion in denying the motion for new trial.

C. Adequacy of Jury Instructions

16

Appellant claims that the district court failed to instruct the jury that the manner
and timeliness of the notice of revocation of acceptance must be determined in
light of all the circumstances in the case, see (adequacy of revocation); (1990)
(timeliness), by refusing to give the more expansive instructions requested by

appellant. In particular, appellant requested that the jury be instructed that it

"may consider what the parties intended and what they understood on the basis
of conversations, documents, et cetera."
17

Appellant was entitled to a proper jury instruction, one which outlined the
controlling law and the decisional standards governing the finders of the facts,
but not to an instruction phrased in "the precise language urged by [appellant]."
See (1st Cir.1987) ("trial judge enjoys considerable discretion in the choice of
idiom."), cert. denied, (1988); (1st Cir.1992).

18

Immediately after instructing the jury on the adequacy and timeliness of the
notice of revocation, the district court explained as follows:

19 need to decide how each of ... these rules apply [sic] to this case. I suggest you
You
should review the evidence, in particular, what, if anything, did anybody on behalf
of [appellant] say orally or in writing about the goods, about sending it back, or
about not wanting them or about returning them or about anything having to do with
the machine in this respect. Then decide [whether there was proof of adequate and
timely notice].
20

The court instructed the jury to review the evidence, with "particular" (but not
necessarily exclusive) attention to what appellant stated, orally or in writing,
about "anything having to do" with "sending [the machine] back, or about
wanting [it] or about returning [it]." The instruction sufficiently informed the
jury of its factfinding responsibilities relating to the adequacy of the putative
notice of revocation in accordance with the gist of the instruction requested by
appellant. Moreover, elsewhere in its charge, the court instructed the jury to
determine the facts from all the credible evidence in the case, including all the
exhibits and all the testimony admitted by the court. The court acted well
within its discretion in determining that any more detailed reference to the
particular evidence the jury was to consider appropriately should be left to
argument by counsel.

21

Affirmed.

Of the District of New Hampshire, sitting by designation.

22
.23Appellant makes reference also to a letter it received from Pro-Cut, dated July 27,
1989, demanding the return of the deposit Pro-Cut made with appellant and
indicating that Pro-Cut would then "return the machine to [appellant]." As the letter
evinces no intention on the part of Pro-Cut or appellant to return the machine to
Luson, it is inapposite to the present issue.